Truck drivers and many others are tested for drug use routinely. The practice of conducting drug testing has become pervasive across a wide swath of industries. But, what happens when a drug testing company gets it wrong? What happens when the laboratory makes a mistake? Having received many of these phone calls, I can tell you what happens: someone gets fired. That is what occurred in Houston Area Safety Council, Inc. & Psychemedics Corp. v. Mendez, No. 21-0496 (Tex. 6/23/2023). Guillermo Mendez worked as a pipefitter for an oil refinery. Oil services companies and oil refineries regularly conduct drug screening tests.
Mr. Mendez erroneously tested positive for cocaine. A second and third sample tested negative. Plaintiff Mendez paid for the third test himself. Nevertheless, his employer refused to assign him additional work. He was essentially fired. He then sued the lab that made the error the first time. The district court granted the lab’s motion for summary judgment. The court of appeals then reversed. The court of appeals noted that the lab had the greatest control over these events than any other partty. The lab then then appealed to the Texas Supreme Court.
No Duty Owed
On appeal, Justice Hecht found the lab owed no duty to the employee. He reasoned that the lab could not reasonably foresee what would happen if they erred. The court accepted the lab’s claim that the lab had “no control” over what the employer does with the false drug positive. This is indeed specious reasoning. Everyone – except perhaps Justice Hecht – knows exactly what the employer will do regarding the false positive. It is certainly foreseeable that the employee will suffer financial harm.
The Justice also noted rightly that drug screenings provide substantial benefit to society. He does argue that the labs employ numerous safeguards to prevent false positives. But, speaking as one lawyer who receives many calls from workers with false results, clearly those protocols are not always effective. As the appellate court noted, the lab is in the best position to prevent false results. If the lab has little control. the employee has even less control over the process. As the dissent noted, if there is no possible action against the lab, then the employee has no legal remedy anywhere in response to a false positive. To lose one’s livelihood for a false reason likewise causes economic harm. So far, the only person enduring that harm is the person with the least control over the process.
See the decision here.